1980 P Cr (PLP)

‑‑‑S. 439‑Revision (criminal)‑Revision against acquittal order of appellate Court passed on grounds that (i) Court was prejudiced for examining a prosecution witness by trial Court without notice to accused or giving him an opportunity to explain evidence of such witness under S. 342, Cr. P. C. ; (ii) Court brought on its record documents showing civil litigation pending between parties without any formal application under S. 428, Cr. P. C. from accused -Objections; held, merely technical and no purpose likely to be served by remanding case‑Revision declined, in circumstances. Ameer Ahmed Khan for Appellant. Jalaluddin for the State. Date of hearing : 16th October, 1979. This is a revision application calling in question the order of acquittal passed by find Additional Sessions Judge, Nawabshah on 23rd September, 1978, in Criminal Appeal No. 18/76, whereby the order of conviction recorded under section 458/444/380, P. P. C. against Aslam Shah sentencing him to 9.months' R. I. for the first count and 6 months' R. 1. and fine of Rs.1,000 or in default 3 months' R. I. for the IInd and IIIrd counts were set aside. One Mohammad Ayub had filed the F. I. R. against Aslam Shah on 6th May, 1976 alleging that Aslam Shah had trespassed. in his house and had demolished the roof of find storey about 15 days before the F. I. R. The‑F.

1. R. was based on the information supplied to Mohammad Ayub by his brother‑in‑law Mohammad Ayaz. The prosecution had led the evidence of Mohammad. Ayaz, Mohammad Ayub and Noor Mohammad to prove the case of trespass arid theft which was believed by the trial Court. The trial Court had also recorded the evidence of one Mauledino after the prosecution had closed its case without any notice to Aslam Shah and no question to Aslam Shah had been put about statement of Mauledino under section 342, Cr. P. C. The appellate Court after considering the evidence of the prosecution witnesses, disbelieved them and held that Aslam Shah was victim of enmity with the complainant Ayub and Noor Mohammad and evidence of P. Ws. were not free from doubt apart from the fact that it is full with errors, omission and contradictions. He, therefore, dis believed ,the prosecution evidence. He also discussed the evidence of defence witnesses, Mst. Dilruba, P. W. Baley Khan had held that the defence witnesses have clearly stated that the accused/appellant Aslam Shah respondent resides in the disputed house since more than 16 years and complainant was not seen by any of them as the neighbour residing in the disputed house. Mr. Ameer Ahmed contends that the learned Additional Sessions Judge was prejudiced against the Lower Court in view, of examining Mauledino. I find that Mauledino had been examined without notice to the accused and no opportunity was, given to the accused under section 342, Cr. P. C. to explain the evidence of Mauledino, and therefore, the Additional Sessions Judge was not completely unjustified in his remarks. The remarks are of course expressed in rather strong language, but that alone does not vitiate the judgment. Mr. Ameer then contended that the appellate Court has taken on its record the documents in respect of civil litigation pending between the parties without any formal application under section 428, Cr. P. C. from the respondent Aslam Shah. This is merely technical objection, and I find that on page 5 line 55 of it's judgment the appellate Court has given reason for taking the certified. copies of civil litigation on record, therefore, it is not without reason .that the true copies have been taken on record and relied upon. Mr. Ameer does not challenge that those true copies are in any manner false or untrue, but his objection is only technical. I do not consider that it will serve the interests of justice if on this technical .ground alone, I remand .the case to the appellate Court for the only purpose of getting 'an application under section 428, Cr. P.`C, from Aslam Shah and then passing the same judg ment. This would only be an exercise in futility. I, therefore, do not see any force in this revision application, which is dismissed. Petition dismissed,